A & K Construction Co., Inc.

Plain-English summary

A & K Construction Co., Inc. was installing a water system in Island Lake, Illinois. On May 27, 1997, an OSHA compliance officer saw an A & K employee working as the bottom man in an open trench about 7.5 feet deep with no sloping, shoring, or trench box. OSHA cited a serious violation of the trench cave-in protection standard and proposed a penalty. A & K disputed the measurements, arguing its trenches were always at least six feet wide and adequately sloped, but its witnesses admitted none had actually measured the cited trench or were present at the inspection. The judge credited the compliance officer's measurements, which were backed by photographs and the project specifications, and found the Type C soil required far more cut-back than existed. The violation was affirmed as serious. Because A & K was a small employer with a 20-year accident-free record that immediately brought in a trench box, the judge assessed a $1,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1) (cave-in protection for employees in excavations)
• Outcome: Citation 1, Item 1 affirmed as serious; $1,500 penalty assessed.
• Key point: Testimony from witnesses who never measured the trench and were not present cannot overcome a compliance officer's measurements supported by photographs and project specifications.

Full text (OSHRC public release)

SECRETARY OF LABOR,
                        Complainant,

                              v.                               OSHRC DOCKET NO. 97-1091
A & K CONSTRUCTION CO., INC.,
                         Respondent.


APPEARANCES:

          For the Complainant:
                   Ruben R. Chapa, Esq., U.S. Department of Labor, Office of the Solicitor

          For the Respondent:
                   Syed Ayaz Ali, A&K Construction Co., Inc., Chicago, Illinois

Before:           Administrative Law Judge: Stanley M. Schwartz

                                             DECISION AND ORDER

          This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section
651 et seq.; hereafter called the "Act").
          Respondent, A & K Construction Co., Inc., (A & K), at all times relevant to this action maintained
a place of business at Hyacinth and Richard Court, Island Lake, Illinois, where it was engaged in water
system construction. Respondent admits it is an employer engaged in a business affecting commerce and
is subject to the requirements of the Act.
          On May 27, 1997 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of A & K's Island Lake work site. As a result of that inspection, A & K was issued citations
alleging violations of the Act together with proposed penalties. By filing a timely notice of contest A & K
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).
          On October 15, 1997, a hearing was held in Chicago, Illinois. The parties made their closing
arguments on the record, and this matter is ready for disposition.

                                                  Alleged Violations

        Citation 1, item 1, as amended, alleges:
29 CFR §1926.652 (a)(1): Each employee in an excavation was not protected from cave-ins by an adequate
protective system designed in accordance with paragraph (b) or (c) of this section.

        At the jobsite at Hyacinth and Richard Court, Island Lake, IL, employees working in a trench
        approximately 40 feet long, 7-1/2 feet deep, and 4 feet wide were not provided protection from
        cave-ins in the form of sloping, shoring or a trench box.

        The cited standard provides:

        Each employee in an excavation shall be protected from cave-ins by an adequate protective system
        designed in accordance with paragraph (b) or (c) of this section except when:
          (i) Excavations are made entirely in stable rock; or
          (ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a
        competent person provides no indication of a potential cave-in.

Facts

        David Morgan, the OSHA Compliance Officer (CO) conducting the May 27, 1997 inspection,
observed an A & K employee, Arturo Cobarrubis, working in an open trench (Tr. 27-28, 82; Exh. C-2, C-3,
C-4). The trench was approximately 40 feet long, including a partially backfilled section (Tr. 21, 115). The
CO measured the trench near the backfill, and found that it was approximately 7 ½' deep and 48 inches
wide at that location (Tr. 21, 87-88; Exh. C-2). The trench was just over the width of the 33" bucket
(approximately 3 feet wide) at the bottom, and 5 ½' wide at the top at the spot where Cobarrubis was
working (Tr. 76, 165; Exh. C-1 through C-4). Morgan testified at the hearing that the soil in the trench was
Type C, a previously disturbed, sandy gravel (Tr. 23-24)[1]. Morgan stated that some sloughing of soil into
the trench was observable at the time of the inspection (Tr. 24). The trench was not shored, and no
protective systems were on site (Tr. 26).
        A & K disputes Morgan's testimony. Gulzar Singh testified that, in general, A & K's trenches are
measured three feet on either side of the centerline, i.e., where the water line is to be located (Tr. 98). All
A & K's trenches are at least six feet wide (Tr. 98-99). Singh stated that the asphalt restoration in the area
where the OSHA inspection took place was approximately 8 feet wide, with an additional 2 to 4 feet of

           [1] Singh testified that he was told by his foreman that the soil at the Island Lake site fell between Type B
   and Type C, but did not know what that determination was based on; he did not take the penetrometer readings at
   that site, and did not now what penetrometer readings his foreman had obtained (Tr. 100, 105). The regulations
   do not provide for intermediate classification of soils. Where readings do not indicate an unconfined compressive
   strength sufficient to meet the requirements for a Type B soil, the soil must be classified as Type C.

lawn restoration, indicating that the trench in that spot was approximately 10 to 12 feet wide (Tr. 99).
Syed Ayaz Ali testified that A & K's trenches were all over 6 feet wide (Tr. 132).
        Singh admitted that he did not take any measurements of the cited trench (Tr. 105, 121). Ali was
not at the work site on the day of the OSHA inspection, and based his testimony solely on his interpretation
of the CO's photographs (Tr. 163-65). Morgan agreed that the trench was measured out at 6 feet, from
saw cut to saw cut, but pointed out that between 6" and 1' of soil remained between the saw cut and trench
wall (Tr. 71, 76-77; Exh. C-1 through C-4).
        Morgan's measurements were supported by the project specifications, which call for a minimum
of six feet of cover over the water system improvements.[2] The water pipe itself is eight inches in diameter,
and approximately three additional inches of fill were placed under the pipe. (Tr. 39-41; Exh. C-5).
        Mr. Cobarrubis was observed in the trench for approximately five minutes; during which time he
was exposed to a potential cave-in hazard (Tr. 37). A & K's operation, as described by Mr. Singh, required
Cobarrubis, as the bottom man, to repeatedly enter the trench to line up each section of pipe as the water
line was installed the length of the project (Tr. 110-11).
        Morgan testified that in the event of a cave-in, Cobarrubis could have sustained multiple fractures,
aphasia or death (Tr. 46; Exh. C-6).

Discussion

    Appendix A of the cited standard requires that Type C soil be shored or sloped to a ratio of 1 ½ to 1
(34°). Table B-1.3 illustrates the required cut-back. A six foot deep excavation measuring three feet at
the bottom, cut in Type C soil, would have to measure 21' across the top to comply with the cited
regulation.
        The CO's estimation of the trench measurement at the spot where A & K's employee was exposed
is supported by the photographic evidence and by the project specifications. It is uncontroverted by the
testimony by A & K's witnesses, none of whom had actual knowledge of the trench dimensions.
        The cited trench failed to comply with the sloping requirements of Appendix A, no shoring was
provided. The Secretary has established the violation.
        The violation is properly characterized as serious, as an accident could result in serious injury or
death. However, A & K is a small employer with only two to five employees (Tr. 166). Mr. Ali testified

           [2] A & K suggested that it could request a variance from the project specifications, but was unable to
   introduce any evidence that it had actually done so (Tr. 107, 136-63).

that in its 20 years of operation, A & K has never had an accident (Tr. 133). A & K immediately abated
the hazard by bringing a trench box on site (Tr. 100). I find that a penalty of $1,500.00 is appropriate.

                                                ORDER

1.    Citation 1, item 1, alleging violation of §1926.652(a)(1) is AFFIRMED, and a penalty of $1,500.00
is ASSESSED.




                                                        Stanley M. Schwartz
                                                        Judge, OSHRC

Dated: